Постановление ЕСПЧ от 08.12.2015 (жалоба N 67437/09) [англ.]

<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Dudayeva v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis Guerra, President,
Helena ,
George Nicolaou,
Helen Keller,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 17 November 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

The case originated in an application (no. 67437/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by a Russian national, Ms Zara Dudayeva («the applicant»), on 18 November 2009.

The applicant was represented by Mr D.S. Itslayev, a lawyer practising in Grozny. The Russian Government («the Government») were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.

The applicant alleged that in July 2002 federal servicemen had killed her son, Mr Aslan Dudayev, during an attack on her house and had abducted and subsequently killed her husband, Mr Ali Dudayev, and that the authorities had failed to carry out an effective investigation into the matter.

On 19 June 2013 the application was communicated to the Government.

THE FACTS

The circumstances of the case

The applicant was born in 1953 and lives in Grozny.

At the material time the applicant’s family lived in a dwelling comprising several houses in one courtyard in Shakhterova Street in the Staropromyslovskiy District of Grozny. The family included the applicant, her husband Mr Ali (also sometimes written as Alik) Dudayev, their sons, Mr Alikhan Dudayev and Mr Aslan Dudayev, Ms Amnat (also sometimes written as Aminat) Yakhyayeva, the wife of Mr Aslan Dudayev, and their five children, including Mr Adam Dudayev. The dwelling was located two blocks from the military commander’s office and the Staropromyslovskiy district police station (the ROVD). The area was under curfew.

The events of the night between 8 and 9 July 2002

The applicant’s account

On the night of 8 to 9 July 2002 (in the documents submitted the date was also referred to as the night between 7 and 8 July 2002) the applicant’s family were at home. The applicant was not there as she had left to spend the night at her relatives’ house in Grozny.

At about 2 a.m. on 9 July 2002 a group of about fifteen federal servicemen in uniforms and balaclavas, armed with automatic weapons, arrived in an armoured personnel carrier (APC) at the applicant’s home and unlocked the gate. They then started shooting and throwing grenades at the applicant’s house.

One of the applicant’s sons, Mr Alikhan Dudayev, who was a police officer, shot back for about half hour. After that he managed to leave the house and inform the police about the incident. Meanwhile, the applicant’s family lay on the floor to avoid being hit. The applicant’s grandson Adam was injured in the foot and lower back by a hand-grenade explosion. Another APC had arrived at the house in the meantime.

About two hours later the servicemen stormed the building. The applicant’s son Mr Aslan Dudayev stood up and started moving towards the servicemen, trying to warn them that there were women and children in the house. He was shot in the head before the eyes of his wife and five children. His body was moved to another room where he was shot in the head again.

The servicemen then took the applicant’s husband, Mr Ali Dudayev, outside and put him in the APC and drove off. The applicant’s husband has been missing ever since.

At the end of their special operation, the servicemen took the applicant’s family outside and set the house and family car on fire.

The applicant heard of the incident at about 4 a.m. and immediately went home. Upon her arrival, the applicant was told by relatives of the circumstances of her son’s killing and of her husband’s abduction.

Submissions by the Government

In their submissions before the Court the Government did not contest the facts as presented by the applicant. However, they denied any involvement by State agents in the alleged killing of her son and the alleged disappearance of her husband.

Official investigation into the events

In reply to a request from the Court to submit a copy of the documents reflecting the most important steps taken by the investigation into the events of the night between 8 and 9 July 2002, the Government furnished copies of criminal case files nos. 54042 and 54108, running up to 224 pages. The information submitted may be summarised as follows.

Investigation of the criminal case opened into the killing of the applicant’s son

On 9 July 2002 a group of investigators from the Grozny prosecutor’s office examined the crime scene. As a result, they collected 408 spent cartridges, two bullets and a machine gun as evidence.

On 9 July 2002 the investigators questioned the applicant’s other son, Mr Alikhan Dudayev, a police officer at the ROVD at the time. He stated that at about 2 a.m. he had been at home and had been woken up by someone opening the outside gates. He had then heard a group of men running into the courtyard. He had asked in Chechen and then in Russian who the men were, but had received no reply. He had seen that one of them was in camouflage uniform and a balaclava and was armed with a machine gun. The witness had warned the man that he was a police officer. In reply, the man had opened fire and the witness shot back. Then the other intruders had opened fire with machine guns and grenades, in an attack of about twenty minutes. The witness had been wounded by grenade splinters in the hand and the torso. He had managed to leave the house and run into the neighbouring courtyard. Meanwhile, the shooting continued. The witness had seen five ROVD officers come out after they heard the gunfire. He had explained the situation to them and they had contacted the local military commander’s office and the ROVD by radio. The witness and the police officers had then heard an APC arriving at the witness’s house, after which the shooting had intensified and had lasted for another half an hour. Then the two APCs had driven off and the gunfire stopped. The police officers had left one of their colleagues with the witness and had gone to the house. Upon their return, they had told him that his brother and father had been taken away in the APCs.

On 9 July 2002 the investigators questioned the applicant’s neighbour, Mr V.M., who stated that on the night between 8 and 9 July 2002 he had been woken up by intense gunfire from automatic firearms at the applicant’s house, which had lasted for about fifty minutes. Then he had seen that the applicant’s house had been set on fire. A group of men had shouted and sworn in unaccented Russian and had then driven off in an APC.

On 9 July 2002 the investigators questioned another neighbour of the applicant, Mr A.T., who stated that the night before he had been woken up by intense gunfire at the applicant’s house. When he had tried to open the door to see what was going on, he had been ordered to stay inside or be shot. He had heard men swearing in Russian.

On 9 July 2002 the investigators questioned the applicant’s neighbours Mr V.A., Mr A.Ch. and Ms Ay.V., whose statements were similar to the one given by Mr V.M. Ms Ay.V. also stated that at about 3 a.m. someone had demanded that she open her door and let in the wife of Mr Aslan Dudayev, Ms Amnat Yakhyayeva, and her children, including the wounded Adam Dudayev. Ms Amnat Yakhyayeva told the witness that all of the men who had been in their house had been killed by the armed men who had arrived in the APC. On the following morning the witness had found a spent 5.45 mm calibre cartridge at her home, presumably from an automatic gun.

On 9 July 2002 the investigators also questioned the applicant’s neighbour, Mr A.I., whose statement was similar to those of the other neighbours (see paragraphs 18 — 20 above). In addition, he stated that the shooting at the Dudayevs’ house had continued for at least one and a half hours, that the armed men who had attacked the applicant’s family had been an organised group of fifteen to twenty men in camouflage uniforms, that they had sworn a lot in unaccented Russian and that they had driven in an APC. After the shooting he had gone to the house and found the walls and furniture riddled with bullet holes. He had also found the body of the applicant’s son, Aslan, who had been killed in the gunfire.

On the same date, 9 July 2002, the investigators also questioned the applicant’s neighbours Ms A.Ya., Ms B.Dzh. and Mr Ab.V., whose statements were similar to those of the other neighbours (see paragraphs 18 — 21 above).

On 10 July 2002 the investigators opened criminal case no. 54042 (in the documents submitted the number was also referred to as 54048) in connection with the murder of the applicant’s son Mr Aslan Dudayev «by a group of fifteen to twenty armed men in camouflage uniforms and balaclavas who had arrived at the [the applicant’s] house».

On 10 July 2002 the investigators ordered a forensic examination of the body of the applicant’s son Mr Aslan Dudayev. On 12 August 2002 the forensic experts concluded that he had died from two gunshot wounds to the head.

On 13 July 2002 the investigators ordered a forensic examination of the applicant’s grandson Adam Dudayev. On the same date the experts concluded that he had received a perforating shrapnel wound and a gunshot wound to the torso.

On 15 July 2002 the applicant’s son Mr Alikhan Dudayev complained of the incident to the Chechnya Prosecutor. In particular, he stated that on the night of the events he had warned the intruders that he was a police officer, but they had opened fire. After an hour and a half of intense shooting, the perpetrators had taken his brother, Mr Aslan Dudayev, outside and executed him in the courtyard. They had then wounded his nephew Adam, and had taken away his father, Mr Ali Dudayev. Neither the military commander’s office nor the nearby police station had reacted to the gunfire or intervened in any way.

On 18 July 2002 the investigators questioned the applicant’s daughter-in-law Ms Amnat Yakhyayeva, whose statement concerning the events was similar to that of her brother-in-law, Mr Alikhan Dudayev. In addition, she stated that her husband, Mr Aslan Dudayev, had been shot dead by the perpetrators, who had been in military uniform and had driven around in two APCs. The perpetrators had also taken away the applicant’s husband, Mr Ali Dudayev.

On 18 July 2002 the investigators questioned the applicant’s neighbours Mr A.V. and Mr M.Kh., whose statements were similar to the applicant’s account before the Court. In addition, Mr M.Kh. stated that after the shooting had stopped, several military vehicles had driven down their street in the direction of the applicant’s house. In the morning he had learned that the attack had been carried out by federal servicemen who had been driving in three APCs.

On 28 July 2002 the investigators ordered a ballistics report on the cartridges, bullets and machine gun collected from the crime scene on 9 July 2002. On 12 August 2002 the ballistic experts concluded that the machine gun had been set for single shots only and that the cartridges had come from several different Kalashnikov machine guns.

On 30 July 2002 the investigators granted the applicant’s son Mr Alikhan Dudayev, the status of victim in the criminal case and questioned him again. He reiterated his previous statement (see paragraph 17 above).

On 1 August 2002 the investigators granted the applicant’s daughter-in-law Ms Amnat Yakhyayeva the status of victim in the criminal case and questioned her. Her statement was similar to the one given on 18 July 2002 (see paragraph 27 above). In addition, she stated that the perpetrators had wounded her father-in-law and taken him away in their APC.

On 1 August 2002 the investigators questioned the applicant’s neighbour Ms Yakh. Dzh., whose statement about the events was similar to those given by the other neighbours and to the applicant’s account before the Court.

On 1 August 2002 the Chechnya Prosecutor wrote to the Chechnya Military Prosecutor asking for assistance in the investigation of the criminal case. The letter stated, inter alia, the following:

«…The Chechnya prosecutor’s office is investigating a criminal case concerning the killing of Mr A. Dudayev and the wounding of Mr A.M. Dudayev by a group of unidentified persons armed with automatic rifles.

One of the theories being pursued by the investigation is that of the involvement in the crime of military servicemen from the United Group Alignment (the UGA). In connection with this I request that an investigator from unit no. 20102 of the military prosecutor’s office be included in the investigators’ group to assist in solving the crime…»

On 21 August 2002 the Grozny military commander’s office informed the investigators that they had no information about the possible identity of the perpetrators and had not issued orders for a special operation at the applicant’s house.

On 10 September 2002 the investigation of the criminal case was suspended owing to a failure to identify the perpetrators. The applicant and her relatives were not informed of this.

On 18 July 2003 the Staropromyslovskiy district prosecutor overruled the decision to suspend the investigation as unlawful and premature. He pointed out, among other things, that the investigators had failed to take basic steps, such as questioning the police officers whom Mr Alikhan Dudayev had met after his escape from the house or questioning the officers from the military commander’s office about the attackers’ use of APC military vehicles. The investigation resumed on the same day.

On an unspecified date in July 2003 the applicant complained of her son’s killing and her husband’s abduction to the Staropromyslovskiy district administration, which on 30 July 2003 forwarded her complaint to the investigators for examination.

On 10 August 2003 the investigators questioned the applicant’s neighbour Mr S.D., whose statement was similar to the applicant’s account before the Court.

On 18 August 2003 the investigation of the criminal case was suspended owing to a failure to identify the perpetrators. The applicant and her relatives were not informed of this decision.

On 2 June 2009 the investigators again took up the criminal case on the orders of their superiors after receiving a request for information from the applicant.

On 5 July 2009 the investigators granted the applicant the status of a victim in the criminal case and questioned her. The applicant’s statement concerning the circumstances of her son’s killing and the abduction of her husband by military servicemen was similar to her account before the Court. In addition, she stated that even though the servicemen had known that her son Mr Alikhan Dudayev worked in the police, they had still opened fire.

On 7 July 2009 the investigators again suspended the investigation owing to a failure to identify the perpetrators. They informed the applicant of this decision.

The applicant appealed against that decision to the Staropromyslovskiy District Court in Grozny. On 29 September 2009 the court rejected the complaint because earlier that day the investigators had resumed the proceedings in the criminal case.

On 30 September 2009 the investigations in criminal cases 54042 and 54108 were joined under the number 54042 (see below).

On 4 October 2009 the investigators suspended the proceedings in the joint criminal case and informed the applicant.

On 9 November 2011 the investigation was resumed by the supervising body as having been unlawfully suspended and the investigators were ordered to take fresh steps.

On 15 December 2011 the investigators again suspended the proceedings in the joint criminal case.

The document submitted shows that the investigation is still pending.

Investigation of the criminal case opened into the disappearance of the applicant’s husband

On 11 December 2002 the Grozny prosecutor’s office opened criminal case no. 54108 in connection with the disappearance of the applicant’s husband, Mr Ali Dudayev.

On 20 December 2002 the investigators questioned the applicant’s daughter-in-law Ms Amnat Yakhyayeva and her son Mr Alikhan Dudayev. Their statements were similar to the applicant’s account before the Court.

On 24 and 25 December 2002 the investigators questioned the applicant’s neighbours Ms A.V. and Ms Z.I., whose statements were similar to the applicant’s account before the Court. In addition, they stated that the perpetrators of the abduction had been military servicemen.

On an unspecified date in February 2003 the investigators informed the applicant’s lawyer that they were taking search measures to establish the whereabouts of the applicant’s missing husband.

On 11 February 2003 the investigation of the criminal case was suspended for failure to identify the perpetrators. The applicant was not informed.

On 18 June 2003 the investigation resumed and was again suspended on 18 August 2003. The applicant was not informed of either decision.

On 2 June 2009 the investigators resumed the investigation at the applicant’s request.

On 5 July 2009 she was granted victim status in the criminal case and questioned. Her statement was identical to the one given in criminal case no. 54042 (see paragraph 41 above).

On 7 July 2009 the investigators suspended the investigation on account of a failure to identify the perpetrators and informed the applicant.

The applicant appealed against the decision to suspend the proceedings to the Staropromyslovskiy District Court. On 29 September 2009 the court rejected the complaint because earlier on the same day the investigators had resumed proceedings in the criminal case.

On 30 September 2009 the investigation in the criminal case was joined with the investigation in criminal case 54042 under a joint number, 54042.

On 4 October 2009 the investigators again suspended the proceedings in the criminal case and informed the applicant. The document submitted shows that the joint investigation is still pending (see above).

Relevant domestic law

For a summary of the relevant domestic law and practice and for international and domestic reports on disappearances in Chechnya and Ingushetia between 1999 and 2006, see Aslakhanova and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43 — 59 and §§ 69 — 84, 18 December 2012).

THE LAW

The Court will deal with the procedural matters in the case before considering the applicant’s complaints concerning the abduction and the killing of her relatives and the allegedly ineffective investigation.

The Government’s preliminary objection

The parties’ submissions

The Government submitted that the applicant had failed to comply with the six-month requirement as she had lodged her application with the Court after «an unexplained and significant delay» of seven years from the events.

The applicant argued that she had complied with the six-month rule and that there had been no excessive and unexplained delays in submitting her application to the Court. In particular, she pointed out that she had lodged the application as soon as she had realised the ineffectiveness of the criminal investigation into the events. She stated that she had complained to the authorities shortly after the incident, and had hoped that the criminal investigations initiated thereafter would produce results. She had assisted the authorities in their search in every possible way. The armed conflict in Chechnya had also led her to believe that some delays in the investigation were inevitable. Nonetheless, she had not been informed of the decisions to suspend the proceedings in either of the criminal cases and had lodged her application as soon as she had been informed of the suspension of the criminal proceedings in October 2009 after her court appeal against the previous decision to suspend the investigation.

The Court’s assessment

General principles

The Court reiterates that the purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it is also meant to protect the authorities and other concerned parties from being left in a state of uncertainty for a prolonged period of time (see Bayram and v. Turkey (dec.), no. 38587/97, ECHR 2002-III, and Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002).

Where no remedies are available, or are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002). However, special considerations may apply in exceptional cases where an applicant avails himself of, or relies on, an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective; in such a case it is appropriate to take as the start of the six-month period the date when he or she first became aware or ought to have become aware of those circumstances rendering the remedy ineffective (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).

In a number of cases concerning ongoing investigations into the deaths of applicants’ relatives, the Court has examined the period of time from which the applicant could or should have started doubting the effectiveness of a remedy and distinguished the approach in assessing the applicant’s compliance with it from the situations of enforced disappearance. Where a death has occurred, applicant relatives are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009). On the same basis, where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (ibid., § 160).

Although the Court has refrained from indicating a specific period for establishing when an investigation has become ineffective for the purposes of assessing when the six-month period should start to run, the determination of such a period by the Court has depended on the circumstances of each case and other factors, such as the diligence and interest displayed by the applicants, as well as the adequacy of the investigation in question. In this connection, in the Varnava and Others judgment, cited above, the Court noted that where the lack of progress or ineffectiveness of an investigation was readily apparent, the requirements of expedition could require an applicant to bring such a case before the Court within a matter of months, or at most, depending on the circumstances, a very few years after the events. This is particularly pertinent in cases of unlawful death where there is generally a precise point in time at which the death is known to have occurred and some basic facts are in the public domain; thus the lack of progress or ineffectiveness of an investigation will generally be more readily apparent (ibid., § 162).

As for disappearance cases, the Court considers that applications can be rejected as out of time where there has been an excessive or unexplained delay on the part of applicants once they have, or should have, become aware that no investigation has been instigated or that the investigation has lapsed into inaction or become ineffective and, in any of those eventualities, there is no immediate, realistic prospect of an effective investigation being provided in the future. Where there are initiatives being pursued in regard to a disappearance situation, applicants may reasonably await developments which could resolve crucial factual or legal issues. Indeed, as long as there is some meaningful contact between families and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a moment when the relatives must realise that no effective investigation has been, or will be provided. When this stage is reached will depend, unavoidably, on the circumstances of the particular case (ibid., § 165).

Application of the principles to the present case

In the present case, the Court notes that the applicant lodged her application with the Court seven years after the incident as a result of which her son had been killed and her husband had disappeared, and that the investigation was formally pending at the time when the application was submitted.

The Court notes that the killing and the abduction took place during the same sequence of events and were perpetrated by the same group of persons. They were also investigated simultaneously (see paragraph 44 above). Considering this, the Court finds that the applicant’s compliance with the six-month requirement in respect of the killing and the disappearance should be assessed as a whole.

The Court notes that the applicant complained to the authorities shortly after the incident and submitted her application to the Court seven years after the events. From the documents submitted it appears that the authorities immediately reacted to her complaint by examining the crime scene, questioning a number of witnesses, initiating the investigation into the events and ordering expert examination of the evidence (see paragraphs 17 — 25 above). The applicant and her relatives provided their statements to the authorities and continued to contact them with requests and complaints (see paragraphs 17, 26, 27, 30, 31, 50 and 52 above). When the investigators suspended the proceedings, neither the applicant nor her relatives were informed thereof (see paragraphs 35, 39, 53 and 54 above). The investigation was resumed more than five years and nine months later as a result of the applicant’s request (see paragraphs 40 and 55 above). Furthermore, the subsequent suspension of the investigation in July 2009, of which the applicant was apprised, led to her appealing against it to the local court, with the proceedings then being resumed (see paragraphs 43 and 57 above).

The Court considers that in the circumstances of the case the applicant did all that could be expected of her to assist the authorities with the investigation into her son’s killing and her husband’s disappearance. The steps taken by the investigators upon resumption of the proceedings, spurred by her initiative in July 2009, when she was questioned, must have appeared as a promising new development to her. Her efforts to obtain information about the progress in the investigation, in the absence of any notification of the suspension of the investigation in August 2003, do not enable the Court to find that the applicant failed to show the requisite diligence by unreasonably waiting for the pending investigation to yield results, in particular as the authorities did resume the proceedings after her request for information on their progress. The Court notes the gap in the proceedings of five years and nine months, but it considers that in the present case this cannot be held against the applicant or interpreted as a failure on her part to comply with the six-month requirement (compare to Gambulatova v. Russia, no. 11237/10, § 50, 26 March 2015).

74. The Court thus considers that an investigation, albeit a sporadic one, was being conducted during the period in question, and that the applicant explained the delay in her application to the Court by the way in which the domestic proceedings developed (see Varnava and Others, cited above, § 166, and Er and Others v. Turkey, no. 23016/04, § 60, 31 July 2012). In the light of the foregoing, the Court finds that the applicant complied with the six-month time-limit.